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Decade-long legal challenge to abortion consent law reaches Montana Supreme Court

Montana Supreme Court
Posted at 7:32 PM, Mar 06, 2024

HELENA — On Wednesday, the Montana Supreme Court heard arguments in a decade-long case, challenging a law that would require parental consent before a minor could get an abortion.

In 2013, the Montana Legislature passed House Bill 391, which prohibited anyone under 18 from getting an abortion without notarized written consent from their parent or legal guardian. Exceptions would be allowed in a medical emergency or if a minor successfully petitioned a court to waive the requirement.

The bill became law without the signature of then-Gov. Steve Bullock, but it never went into effect, as Planned Parenthood of Montana sued over it and the office of then-Attorney General Tim Fox accepted a preliminary injunction. Over the following years, the case passed through several district court judges, eventually ending up with District Judge Chris Abbott of Helena. Last year, he ruled the law was invalid because it infringed on the right to privacy in the Montana Constitution.

Attorney General Austin Knudsen’s office appealed Abbott’s decision, saying he used the wrong standard when judging the law. Abbott applied “strict scrutiny,” meaning the state had to show a compelling interest to justify the law and that it was narrowly tailored to achieve its goal.

Deputy solicitor general Brent Mead told justices Wednesday that the law should be analyzed differently because the Montana Constitution grants the state more authority to make laws that affect the rights of people under the age of 18. He said that means the Armstrong decision – the 1999 Montana Supreme Court ruling that said abortion was covered under the state constitution’s right of privacy – doesn’t apply in full here.

“Under Article 2, Section 15, a minor's rights can be infringed if the law is designed to protect them,” said Mead. “And so in this case, the full Article 2, Section 10 – the right to privacy – doesn't attach because the law is designed to protect them in that protected interest.”

Mead said the court should instead balance the individual rights of the minor with the rights of their parents and the state’s legitimate interest in protecting minors.

Justices questioned Mead on why strict scrutiny should not apply in this case, and whether the consent requirement was the least restrictive method possible, given an earlier law that only required a parent be notified – which also faced a lawsuit. Mead said the law was intended to resolve a loophole in the parental notification law and the two shouldn’t be directly contrasted.

Attorneys representing Planned Parenthood said Wednesday that Abbott did use the proper standard when deciding the case. They said, under strict scrutiny, the state would have to point to a legitimate health or safety risk to justify the law as a protection for minors, and they hadn’t done so.

Attorney Tanis Holm said the parental consent requirement would apply only to abortion, not to a variety of other procedures.

“Whatever interest the state has in promoting parental authority must be exercised neutrally, not as to favor childbirth over abortion, and certainly not to step in the shoes of parents to regulate the family relationship,” she said. “That is what the state is doing here.”

In questioning Holm, Justice Laurie McKinnon said that the court’s decision in a case last year had established a precedent that abortions are generally safe.

As is typical, the court took no immediate action after Wednesday’s arguments. Justice Beth Baker presided over the hearing in place of Chief Justice Mike McGrath, who recused himself from the case. Baker said the court would release their decision in due course.

This isn't the only abortion-related case the Supreme Court is considering right now. They've also received an appeal, challenging a ruling from Knudsen’s office that blocked a ballot measure that would specifically protect access to abortion in the Montana Constitution. The office said the proposed amendment violated Montana’s requirement that unrelated constitutional changes be voted on separately.